A short but interesting question, as
to how conflict in two constitutional rights should be balanced, is
involved in this appeal which arises out of a judgment and order dated
11.08.2004 passed by a Division Bench of the Delhi High Court in Writ
Petition (Civil) No. 1076 of 2003.

3. Respondent No.1 is an unaided
school. It is governed by the provisions of the Delhi School Education
Act, 1973 (for short, 'the Act') and the rules framed thereunder. It
filed a writ petition in public interest, questioning the action of the
appellant and the respondents Nos. 2 to 5 herein as regards utilizing
the services of the teachers of the Government schools for various
purposes during school timings, as a result whereof the students reading
in the said schools are deprived of obtaining instructions from their
teachers during such period. In the writ petition it was pointed out
that the absence of teachers occur due to their deployment for
non-educational purposes; and as the teaching and administrative staff
of these schools have been used by the State agencies as well as the
appellant herein for various other duties outside school during school
hours including:

4. The Act and the Rules framed
thereunder which govern the field mandate that all the schools in Delhi
have to function for a minimum of 210 days in a year. It was pointed out
that although the extent of the period differed, the teachers were asked
to perform polling duties for a few months and also for census duties
for considerable period. The writ petition highlighted that absence of
teachers from the school for a long time resulted in unfinished courses,
high drop out rates, poor results and inability to compete in open
examinations, such as medicine, engineering etc. and/or to get admission
in other prestigious or professional colleges. It was contended that an
informal survey conducted by the petitioner therein demonstrated that
about 9,00,000 students had enrolled themselves in class 1 of the
schools run by the Municipal Corporation of Delhi, but only 50,000 of
them appeared in the secondary examination.

5. The Municipal Corporation of
Delhi (MCD) in its counter affidavit contended that absence of the
teachers and other administrative staff of schools for performing duties
allocated by the officers of the Election Commission is in national
interest. In the counter affidavit, it was, stated:

"3. That the main work assigned to
teachers is in relation to teaching work. However, in the larger
national interest, some of the teachers are called upon to do some other
Government work relating to public interests like polio vaccination,
preparation of voter list, etc.

4. That only during the work of
census in the year 2001, a slightly large number of teachers were
required for the purpose. Even for this purpose, to take care that the
teaching activities are not hampered in any manner, letter No.
F-4/12/2000 dated 04.02.01, referring to the Order of Lt. Governor of
the NCT of Delhi having been passed, whereby the enumerators were
directed to perform their census enumeration duties before/after their
normal school hours. The census work is conducted only once in a
decade."

5. That it is reiterated that it is
seen that the government work relating to public interest done by the
teachers does not hamper the teaching activities. The additional
government public work is some time assigned to some of the teachers in
national interest."

6. The New Delhi Municipal Committee
(NDMC) in its additional affidavit filed before the High Court, stated :
"2. That the total number of sanctioned posts of teachers in NDMC
Schools are about 1200. For polling duty, almost 90% of the teaching
staff is deployed on duty. For census work in the year 2000 and
enumeration work in the year 2001, 90% of the staff were assigned duty.
For Revision of electoral rolls, almost 50% of the teaching staff is put
on duty.

3. For polling duties, the Election
Commission deploys the teachers of the NDMC Schools for the purposes of
holding Parliamentary Elections, Delhi Assembly Elections and even
Municipal Corporation Elections. Generally the elections are held on
Sundays, but before the actual polling takes places, the teaching staff
is called for three working days for the purposes of training,
collection of election material etc. In the year 1998-99, all the
elections were held i.e. Parliamentary, Delhi Assembly and Corporation
Elections and hence the teachers were not on duty for 9 working days.

4. That in the year 2001, when the
work of Special Revision of Electoral Roll was required to be conducted,
the then Chief Electoral Officer informed the Respondent NDMC that the
said work shall be conducted by the teachers between 13.9.2001 to
12.10.2001 by the teachers. Initially it was supposed to be a part time
job, however, it was later on converted into a full time work so as to
complete the assignment within the prescribed time."

7. During the pendency of the writ
petition before the High Court, the Government of NCT of Delhi issued a
circular letter, relevant portion whereof is as under :

"This duty binds the
State-Governments to provide the requisite number of staff to the
Election Commission for conducting elections and taking into
consideration the insufficient number of staff available in generalist
cadre, the government proposes to utilize the services of teaching staff
for the following duties :

(a) Election Duty
(b) Revision of Electoral Rolls
(b) Revision of Electoral Rolls : For the intensive revision of
electoral rolls, we require approximately 55,000 employees whereas the
Cadre strength of the General cadre of the Govt. of NCT of Delhi is only
around 9000. In view of this, the services of teachers are indispensable
for intensive Revision of Election Rolls. This intensive revision of
electoral rolls is not a regular process and this takes place with a
periodicity of 4 to 5 years as per instructions of the Election
Commission of India.

The Summary/Special Revision of
Electoral Rolls takes place once in a year and the services of teachers
are normally not utilized and this is managed within the cadre strength.
However, in some of the institutions that are declared as designated
locations, the services of the Head of the Institution are taken to
receive the Form and they are declared as Designated Officers. Normally,
these officials are not engaged in teaching and handle the work in
addition to their administrative duties. They are assisted by
non-teaching staff.

The Staff thus deployed function
under the superintendence and control of the Chief Electoral Officer and
remain under the administrative control of Chief Electoral Officer
during this period.

Elections being a sovereign function
of the State, the work of conduct of elections cannot be delegated to
persons who are not employees of government or to any non-governmental
agency, parastatal organizations etc.

The Government draws staff from
every govt. department and it is not true that only teachers are
deployed for election work. Staff from other categories from almost
every department is engaged for election duty.

However, with a view to ensure that
election work does not come in conflict with the interest of education,
the respondent Government would like to take the following steps to
ensure that teaching work is least affected :

(i) As far as possible the revision
of Electoral roll shall be taken up during holidays or teachers would be
deployed to perform the work on holidays.

(iii) The teaching hour loss, if
any, shall be compensated by holding extra classes, so that the minimum
prescribed teaching hours are completed.

(iv) The Principals/Heads of
Institutions will be directed to make internal adjustment of time tables
and reschedule the classes for making up any possible teaching losses."

8. Learned counsel appearing for the
parties, however, as it appears from the impugned judgment, accepted
before the High Court that the services of the teachers should be
utilized for non-teaching purposes only on a day which is not a working
day for the students.

9. The Election Commission is, thus,
before us.

10. Mr. K.K. Venugopal, learned
Senior Counsel appearing on behalf of the appellant, would, inter alia,
submit :
(i) Holding of an elections is a sovereign function.
(ii) The Election Commission having regard to the provisions contained
in the Constitution of India as also the Representation of the People
Act, 1951 is required to conduct elections for the purpose of upholding
democracy.
(iii) Democracy being a basic feature of the Constitution of India, it
is obligatory on the part of the Election Commission to ensure that the
citizens who are entitled to vote are not deprived of their right and
those who are not entitled thereto are not permitted to do so.

(iv) In terms of the provisions of
clauses (1) and (6) of Article 324 of the Constitution of India, it is
mandated that whenever the Election Commission asks for deployment of
staff for the purpose of conducting elections, it is obligatory on the
part of the President of India or the Governor of the State to make such
number of staff made available to it, and with a view to fulfill the
said constitutional object, the Parliament amended Section 159 of the
1951 Act so as to provide :
"159. Staff of certain authorities to be made available for election
work. -

(1) The authorities specified in
sub-section (2) shall, when so requested by a Regional Commissioner
appointed under clause (4) of article 324 or the Chief Electoral Officer
of the State, make available to any returning officer such staff as may
be necessary for the performance of any duties in connection with an
election.

(2) The following shall be the
authorities for the purposes of sub-section (1), namely:--
(i) every local authority;

(ii) every university established or
incorporated by or under a Central, Provincial or State Act;

(iii) a Government company as
defined in section 617 of the Companies Act, 1956 (1 of 1956);

(iv) any other institution, concern
or undertaking which is established by or under a Central, Provincial or
State Act or which is controlled, or financed wholly or substantially by
funds provided, directly or indirectly, by the Central Government or a
State Government."

(v) The High Court, in that view of
the matter could not have issued any direction which may for all intent
and purport interfere with the electoral process.

11. Learned counsel appearing on
behalf of the Municipal Corporation of Delhi, New Delhi Municipal
Committee and Union of India adopted the submissions of Mr. Venugopal.

12. Ms. Reena George, learned
counsel appearing on behalf of the writ petitioner-respondent, on the
other hand, submit that :

(a) the impugned order having been
passed in terms of consent of the parties, this Court should not
exercise its jurisdiction under Article 136 of the Constitution of India

(b) Right to education being a
fundamental right having regard to Article 21A of the Constitution of
India, it is obligatory on the part of the State to ensure that the
students are not deprived thereof.

(c) In the affidavit filed on behalf
of the NDMC, it was clearly demonstrated that in some schools where
teaching or instructions are imparted for Class IX or X students, no
teacher was available for a period of two months.

(d) The purpose for which the
education is imparted in the schools is to see that the Government in
the municipal schools must ensure that they compete with the standard
maintained by the private schools.

13. Indisputably, for upholding the
democracy and the democratic values, holding of elections is imperative.
There cannot also be any doubt or dispute that keeping in view the
constitutional mandate provided for under clauses (1) and (6) of Article
324 of the Constitution of India, the President of India or the Governor
of a State i.e. the Central Government as also the State Government have
a duty to make available to the Election Commission, or to a Regional
Commissioner such staff, as may be necessary for the discharge of
functions conferred on the Election Commission by clause (1) in terms
whereof a power of superintendence, direction and control of elections
is to be vested in the Election Commission, if request in this regard is
made. Article 327 of the Constitution of India empowers the Parliaments
to make laws with respect to all matters relating to, or in connection
with, elections to either House of the Parliament or to the House or
either House of the Legislature of a State including the preparation of
the electoral rolls, the delimitation of constituencies and all other
matters necessary for securing the due constitution of such House or
Houses.

The Parliament with a view to give
effect to the said constitutional functions enacted the Representation
of the People Act, 1950 (1950 Act) and the Representation of the People
Act, 1951 (1951 Act).

15. We may notice certain provisions
of the said Acts.1950 Act :
Section 13-A of 1950 Act provides for the designation or nomination of
the Chief Electoral Officers, by the Election Commissioner; whereas
Section 13-AA provides for designation or nomination of a District
Election Officer, who is to be an officer of Government. Sections 13B,
13CC and Section 29 of the 1950 Act read as under :

"13B - Electoral registration
officers. - (1) The electoral roll for each parliamentary constituency
in the State of Jammu and Kashmir or in a Union territory not having a
Legislative Assembly, each assembly constituency and each Council
constituency shall be prepared and revised by an electoral registration
officer who shall be such officer of Government or of a local authority
as the Election Commission may, in consultation with the Government of
the State in which the constituency is situated, designate or nominate
in this behalf.

(2) An electoral registration
officer may, subject to any prescribed restrictions, employ such persons
as he thinks fit for the preparation and revision of the electoral roll
for the constituency."

"13CC. Chief Electoral Officers,
District Election Officers, etc., deemed to be on deputation to Election
Commission. - The officers referred to in this Part and any other
officer or staff employed in connection with the preparation, revision
and correction of the electoral rolls for, and the conduct of, all
elections shall be deemed to be on deputation to the Election Commission
for the period during which they are so employed and such officers and
staff shall, during that period, be subject to the control,
superintendence and discipline of the Election Commission."

"29. Staff of local authorities to
be made available. - Every local authority in a State shall, when so
requested by the chief electoral officer of the State, make available to
any electoral registration officer such staff as may be necessary for
the performance of any duties in connection with the preparation and
revision of electoral rolls."

1951 Act :
Sections 2(1)(bb) and 2(1)(cc) of 1951 Act provide for the meanings of
the terms "Chief Electoral Officer" and the "District Election Officer",
who would be an officer appointed under Sections 13-A and 13-AA of the
1950 Act.

Part IV of 1951 Act, does not lay
down any procedure for requisitioning of a person for being appointed as
the Returning Officer, an Assistant Returning Officer ; or Presiding
Officer, or Polling Officer. However, it may be noticed that after
Section 22, which provides for appointment of Assistant Returning
Officers a proviso was added by reason of Act No. 47 of 1966 in terms
whereof the words "an Officer of Government or of a local authority" had
been inserted.

Sections 26, 28A, 151 and Section
159 read as under :
"26 - Appointment of presiding officers for polling stations. - (1) The
district election officer shall appoint a presiding officer for each
polling station and such polling officer or officers as he thinks
necessary, but he shall not appoint any person who has been employed by
or on behalf of, or has been otherwise working for, a candidate in or
about the election:

Provided that if a polling officer
is absent from the polling station, the presiding officer may appoint
any person who is present at the polling station other than a person who
has been employed by or on behalf of, or has been otherwise working for,
a candidate in or about the election, to be the polling officer during
the absence of the former officer, and inform the district election
officer accordingly:

Provided further that nothing in
this sub-section shall prevent that district election officer from
appointing the same person to be the presiding officer for more than one
polling station in the same premises.

(2) A polling officer shall, if so
directed by the presiding officer, perform all or any of the functions
of a presiding officer under this Act or any rules or orders made
thereunder,

(3) If the presiding officer, owing
to illness or other unavoidable cause, is obliged to absent himself from
the polling station, his functions shall be performed by such polling
officer as has been previously authorised by the district election
officer to perform such functions during any such absence

(4) References in this Act to the
presiding officer shall, unless the contest otherwise requires, be
deemed to include any person performing any function which he is
authorised to perform under sub-section (2) or sub-section (3), as the
case may be."

"28A. Returning officer, presiding
officer, etc., deemed to be on deputation to Election Commission. - The
returning officer, assistant returning officer, presiding officer,
polling officer and any other officer appointed under this Part, and any
police officer designated for the time being by the State Government,
for the conduct of any election shall be deemed to be on deputation to
the Election Commission for the period commencing on and from the date
of the notification calling for such election and ending with the date
of declaration of the results of such election and accordingly, such
officers shall, during that period, be subject to the control,
superintendence and discipline of the Election Commission."

"151.- Casual vacancies in the State
Legislative Councils. - When before the expiration of the term of office
of a member elected to the Legislative Council of a State, his seat
becomes vacant or is declared vacant or his election to the Legislative
Council is declared void, the Election Commission shall, by a
notification in the Official Gazette, call upon the Council constituency
concerned or the members of the Legislative Assembly of the State, as
the case may be, to elect a person for the purpose of filling the
vacancy so caused, before such date as may be specified in the
notification, and the provisions of this- Act and of the rules and
orders made thereunder shall apply, as far as may be, in relation to the
election of a member to fill such vacancy."

"159. Staff of certain authorities
to be made available for election work. - (1) The authorities specified
in sub-section (2) shall, when so requested by a Regional Commissioner
appointed under clause (4) of article 324 or the Chief Electoral Officer
of the State, make available to any returning officer such staff as may
be necessary for the performance of any duties in connection with an
election.

(2) The following shall be the
authorities for the purposes of sub-section (1), namely:--
(i) every local authority;
(ii) every university established or incorporated by or under a Central,
Provincial or State Act;
(iii) a Government company as defined in section 617 of the Companies
Act, 1956 (1 of 1956);
(iv) any other institution, concern or undertaking which is established
by or under a Central, Provincial or State Act or which is controlled,
or financed wholly or substantially by funds provided, directly or
indirectly, by the Central Government or a State Government."

19. We may, however, notice that
prior to enactment of Act No. 12 of 1998 in terms of Section 159 of the
1951 Act the obligation to make available to any Returning Officer such
staff as may be necessary in connection with an election was only
confined to the local authority.

20. The question as to whether the
staff of the State Bank of India could be requisitioned for the purpose
came up for consideration before this Court in Election Commission of
India v. State Bank of India Staff Association, Local Head Office Unit,
Patna and Others [(1995) Supp. 2 SCC 13], wherein this Court upheld
the judgment and order of the Division Bench of the Patna High Court,
opining that the officers of the State Bank of India cannot be
requisitioned in terms of Section 26 of the 1951 Act or otherwise.

21. The constitutional and statutory
scheme would lead to a realistic conclusion when emphasis was laid that
it is for the Central Government and the State Governments alone to
provide for the requisite staff. How would they do it is one thing. It
may be by fresh recruitment for the purposes for which the staff are
requisitioned or for deployment or by way of deputation. Indisputably,
there are certain functions which may be performed only by the
Government staff. For the said purposes they may be sent on deputation
e.g. Sections 21 and 22 of the 1951 Act provides for the Returning
Officers and Assistant Returning Officers who must be an officer of
Government or of a local authority. Therefore, their services can be
requisitioned under clause (6) of Article 324 of the Constitution of
India as also Section 159 of the 1951 Act. The Election Commission or
the Regional Commissioner, as the case may be, is also entitled to
request for requisitioning the services of the persons in the employment
of the Government or the local authority and others who may not be
officers of the Government or the local authority. The services of other
employees who are not officers may also be requisitioned. The Parliament
was aware that in an election, requisition of services of the employees
of the Central Government or the State Governments may prove to be
insufficient and, thus, a direction for appointment of the staff from
amongst the officers of the local authority and others have been made.

22. On the other hand, however,
right to education is held to be a fundamental right. It was so stated
in Mohini Jain v. State of Karnataka [(1992) 3 SCC 666] in the
following terms :

"12. "Right to life" is the
compendious expression for all those rights which the courts must
enforce because they are basic to the dignified enjoyment of life. It
extends to the full range of conduct which the individual is free to
pursue. The right to education flows directly from right to life. The
right to life under Article 21 and the dignity of an individual cannot
be assured unless it is accompanied by the right to education. The State
Government is under an obligation to make endeavour to provide
educational facilities at all levels to its citizens."

23. The aforementioned ratio has
been affirmed with certain modification by this Court in Unni
Krishnan, J.P. & Others v. State of Andhra Pradesh & Others [(1993)
1 SCC 645], expressly stating :
" Having regard to the fundamental significance of education to the life
of an individual and the nation, and adopting the reasoning and logic
adopted in the earlier decisions of this Court referred to hereinbefore,
we hold, agreeing with the statement in Bandhua Mukti Morcha 27 that
right to education is implicit in and flows from the right to life
guaranteed by Article 21. That the right to education has been treated
as one of transcendental importance in the life of an individual has
been recognised not only in this country since thousands of years, but
all over the world. In Mohini Jai,n the importance of education has been
duly and rightly stressed. The relevant observations have already been
set out in para 7 hereinbefore. In particular, we agree with the
observation that without education being provided to the citizens of
this country, the objectives set forth in the Preamble to the
Constitution cannot be achieved. The Constitution would fail "

24. Article 45 is the only provision
in our Constitution which fixes a time limit during which the State is
to provide for free and compulsory education for children until they
complete the age of 14 years. The Constitution has been amended keeping
in view the aforementioned provisions as also the decision of this Court
in Unni Krishnan (supra) by inserting Article 21A of the Constitution of
India, which reads as under :

"The right to education which flows
from Article 21 is not an absolute right. It must be construed in the
light of directive principles. A true democracy is one where education
is universal, where people understand what is good for them and the
nation and the right to education have to be determined. Right to
education, understood in the context of Articles 45 and 41, means that
every child/citizen of this country has a right to free education until
he completes the age of fourteen years and (b) after child/citizen
completes 14 years, his right to education is circumscribed by the
limits of the economic capacity of the State and its development. It is
significant that among the several articles in Part IV, only Article 45
speaks of a time limit; no other article does. It is not a mere pious
wish and he Sate cannot flout the said direction even after 44 years on
the ground that the article merely calls upon it to "endeavour to
provide" the same and on the further ground that the said article is not
enforceable by virtue of the declaration in Article 37. The passage of
44 years more than four time the period stip0ulated in Article 45 has
converted the obligation created by the article into an enforceable
right. At least now the State should honour the command of Article 45.
It must be made a reality."

25. Sixty years of independence,
however, has not brought about the desired result of imparting
compulsory education to all the children. Education is one of the most
important functions of the State. The State has a basic responsibility
in regard thereto.

26. In Brown v. Board of
Education [(98 L.Ed. 873 : 347 US 483 (1954)], Earl Warren, CJ,
speaking for the US Supreme Court emphasized the right to education in
the following terms :

"Today, education is the most
important function of the State and local Governments It is required in
the performance of our most basic responsibility, even services in the
armed forces. It is the very foundation of good citizenship. Today it is
the principal instrument in awakening the child to cultural values, in
preparing him for later professional training, and in helping him to
adjust normally to his environment. In these days it is doubtful any
child may reasonably be expected to succeed in life if he is denied the
opportunity of an education."

27. The provisions of the 1950 and
1951 Acts although were enacted in terms of Article 324 of the
Constitution of India, the same must be given restricted meaning.
Holding of an election is no doubt of paramount importance. But for the
said purpose the education of the children cannot be neglected.
Therefore, it is necessary to maintain the balance between the two.

28. With an advent of technology
requisitioning of a large number of people for carrying out the election
may not be necessary. We may notice that the Election Commission has
different roles to play. Preparation of an electoral rolls, revision of
electoral rolls, when objections are filed, hearing the parties and
determining the objections, enumeration of the voter list and to hold
elections as and when due. The Election Commission and its officers, in
our opinion, can formulate an effective scheme to see that the services
of a large number of teachers are not required. The State admittedly is
not in a position to perform its sovereign function of imparting
education. Such functions necessarily are required to be performed by
the private actors. Those students who are in a position to get
admission in the public schools presumably would also be in a position
to appoint tutors whereas those students who are admitted to the
Government schools ordinarily would be from the middle or lower middle
class or poor families. The state of primary education in India is in
deplorable condition. There admittedly is a heavy drop outs from the
schools particular from amongst the girl schools. The question if right
to exercise franchise whereupon the emphasis is laid by Mr. Venugopal is
an important one, right to education is also no less important being a
fundamental right.

29. The Human Rights Conventions
have imposed a duty on the Contracting States to set up institutions of
higher education which would lead to the conclusion that the citizens
thereof should be afforded and an effective right of access to them. In
a democratic society, a right to education is indispensable in the
interpretation of right to development as a human right. [See Leyla
Sahin v. Turkey, decided by the European Court of Human Rights on 10th
November, 2005]. Thus, right to development is also considered to be a
basic human right.

30. It is probably with that end in
view the counsel appearing for the Election Commission had also joined
the other counsel appearing for the respondents, to suggest the court
that the services of the teachers may not be requisitioned on the days
on which the schools are open. Submission of Mr. Venugopal that such a
contention had not been made by the learned counsel appearing on behalf
of the Election Commission cannot be accepted.

31. We have, however, considered the
matter at some details as the question in regard to the application of
the constitutional right and in particular fundamental right cannot be
thwarted only by reason of a concession made by a counsel.

32. We would, however, notice that
the Election Commission before us also categorically stated that as far
as possible teachers would be put on electoral roll revision works on
holidays, non-teaching days and non-teaching hours; whereas non-teaching
staff be put on duty any time. We, therefore, direct that all teaching
staff shall be put on the duties of roll revisions and election works on
holidays and non-teaching days. Teachers should not ordinarily be put on
duty on teaching days and within teaching hours. Non-teaching staff,
however, may be put on such duties on any day or at any time, if
permissible in law.

33. Subject to the aforementioned
modifications, this appeal is dismissed. However, in the facts and
circumstances of this case, there shall be no order as to costs.